Inhalt AUFSÃƒÂ„TZE ENTSCHEIDUNGSANMERKUNGEN VARIA - ZIS

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Eleni Chaitidou _____________________________________________________________________________________ The accused in both cases challenged the jurisdiction ratione materiae of the Court before the Pre-Trial Chamber (i) contesting the Chamber’s adopted definition of “organization” within the meaning of art. 7 para. 2 lit. a and (ii) advancing that the facts of the case do not satisfy the definition of “organization”. The Majority addressed the challenges in the decisions confirming the charges and dismissed them in limine. 274 In essence, the Majority held that the true nature of the Defence challenge is “evidentiary”, relating to the merits of the Prosecutor’s case which should be addressed under art. 61 para. 7. 275 b) Proceedings before the Appeals Chamber Subsequently, the Defence in both cases lodged an appeal under art. 82 para. 1 lit. a against the Majority’s decision with respect to jurisdiction and advanced, more or less, the same arguments before the Appeals Chamber. The Judges, in turn, rejected the appeals and confirmed that the question whether the contextual element of an “organizational policy” existed both as a matter of law and facts pertains to the substantive merits of the case. 276 In the Chamber’s view, any other interpretation would “conflate the separate concepts of jurisdiction and the confirmation process” 277 and cannot, accordingannexed to ICC (Pre-Trial Chamber II), Decision of 23.1.2012– ICC-01/09-01/11-373, p. 168 para. 52. 273 ICC (Pre-Trial Chamber II), Decision of 23.1.2012 – ICC- 01/09-01/11-373 (Decision on the Confirmation of Charges Pursuant to Article 61 [7] [a] and [b] of the Rome Statute), paras. 280-281. 274 However, in Case 1 the Chamber rejected the first limb of the challenge (definition of the term “organisation”), and only dismissed in limine the second limb (“sufficiency of evidence”), s. ICC (Pre-Trial Chamber II), Decision of 23.1.2012 – ICC-01/09-01/11-373 (Decision on the Confirmation of Charges Pursuant to Article 61 [7] [a] and [b] of the Rome Statute), paras. 33-34. 275 ICC (Pre-Trial Chamber II), Decision of 23.1.2012 – ICC- 01/09-01/11-373 (Decision on the Confirmation of Charges Pursuant to Article 61 [7] [a] and [b] of the Rome Statute), paras. 35-36; ICC (Pre-Trial Chamber II), Decision of 23.1.2012 – ICC-01/09-02/11-382-Red (Decision on the Confirmation of Charges Pursuant to Article 61 [7] [a] and [b] of the Rome Statute), paras. 30-35. 276 ICC (Appeals Chamber), Decision of 24.5.2012 – ICC- 01/09-01/11-414 (OA3 OA4, Decision on the appeals of Mr. William Samoei Ruto and Mr. Joshua Arap Sang against the decision of Pre-Trial Chamber II of 23 January 2012 entitled “Decision on the Confirmation of Charges Pursuant to Article 61 [7] [a] and [b] of the Rome Statute”); ICC (Appeals Chamber), Decision of 24.5.2012 – ICC-01/09-02/11-425 (OA 4, Decision on the appeal of Mr. Francis Kirimi Muthaura and Mr. Uhuru Muigai Kenyatta against the decision of Pre-Trial Chamber II of 23 January 2012 entitled “Decision on the Confirmation of Charges Pursuant to Article 61 [7] [a] and [b] of the Rome Statute”). 277 ICC (Appeals Chamber), Decision of 24.5.2012 – ICC- 01/09-02/11-425 (OA 4, Decision on the appeal of Mr. Franly, form part of a jurisdictional challenge. As a result, whether or not the events concerned qualify as crimes against humanity has been postponed to after trial. Maybe the most crucial comment by the Appeals Chamber can be found in the following statement: “As the Prosecutor has expressly alleged crimes against humanity, including the existence of an organizational policy, the Appeals Chamber finds that the Court has subject-matter jurisdiction over the crimes with which [the accused] have been charged”. 278 This implies that whenever the Prosecutor has determined that a situation/case falls within the jurisdiction ratione materiae of the Court, 279 the Judges must agree with such a determination and have no supervisory function. c) Proceedings before the Trial Chamber Following the practice of other trial chambers, the Judges requested the Prosecutor to submit an updated “post-confirmation document containing the charges” as this “will assist in providing a readily accessible statement of the facts underlying each charge”. 280 Before doing so, however, the parties were instructed to consult each other with a view to “resolving any areas of disagreement as to […] whether the draft updated DCC properly reflects the Confirmation Decision”. 281 Subsequently, the parties returned to the Chamber submitting their points of disagreement over the content of the updated DCC. The Chamber, in turn, decided whether a particular alcis Kirimi Muthaura and Mr. Uhuru Muigai Kenyatta against the decision of Pre-Trial Chamber II of 23 January 2012 entitled “Decision on the Confirmation of Charges Pursuant to Article 61 [7] [a] and [b] of the Rome Statute”), para. 35. The same was held in Case 1. 278 ICC (Appeals Chamber), Decision of 24.5.2012 – ICC- 01/09-02/11-425 (OA 4, Decision on the appeal of Mr. Francis Kirimi Muthaura and Mr. Uhuru Muigai Kenyatta against the decision of Pre-Trial Chamber II of 23 January 2012 entitled “Decision on the Confirmation of Charges Pursuant to Article 61 [7] [a] and [b] of the Rome Statute”), para. 36. The same was held in Case 1. 279 Art. 53 para. 1. 280 ICC (Trial Chamber V), Order of 5.7.2012 – ICC-01/09- 01/11-439 (Order for the prosecution to file an updated document containing the charges), para. 7; S.a. ICC (Trial Chamber V), Order of 5.7.2012 – ICC-01/09-02/11-450 (Order for the prosecution to file an updated document containing the charges), para. 8. Further guidance regarding the content of the charges was given in ICC (Trial Chamber V), Order of 20.11.2012 – ICC-01/09-01/11-475 (Order regarding the content of the charges); ICC (Trial Chamber V), Order of 20.11.2012 – ICC-01/09-02/11-536 (Order regarding the content of the charges). 281 ICC (Trial Chamber V), Order of 5.7.2012 – ICC-01/09- 02/11-439 (Order for the prosecution to file an updated document containing the charges), para. 7; ICC (Trial Chamber V), Order of 5.7.2012 – ICC-01/09-02/11-450 (Order for the prosecution to file an updated document containing the charges), para. 8. _____________________________________________________________________________________ 150 <strong>ZIS</strong> 3/2013
Recent developments in the jurisprudence of the International Criminal Court _____________________________________________________________________________________ legation could be retained in the updated DCC. 282 Perhaps of interest in this context are the Chamber’s findings as regards (i) the question which document constitutes an authoritative statement of the charges for trial, 283 (ii) the binding nature of the temporal and geographical scope of the charges set in the decision confirming the charges, 284 and (iii) the legal consequences attributed to the Pre-Trial Chamber’s silence on relevant facts in the decision confirming the charges 285 . The two decisions presented here are, in some respect, rather disquieting contributions 286 to the discussion about the specificity of the confirmation of charges decision/the necessity 282 ICC (Trial Chamber V), Decision of 28.12.2012 – ICC- 01/09-01/11-522 (Decision on the content of the updated document containing the charges); ICC (Trial Chamber V), Decision of 28.12.2012 – ICC-01/09-02/11-584 (Decision on the content of the updated document containing the charges). 283 ICC (Trial Chamber V), Decision of 28.12.2012 – ICC- 01/09-01/11-522 (Decision on the content of the updated document containing the charges), para. 18; ICC (Trial Chamber V), Decision of 28.12.2012 – ICC-01/09-02/11-584 (Decision on the content of the updated document containing the charges), para. 22. 284 ICC (Trial Chamber V), Decision of 28.12.2012 – ICC- 01/09-01/11-522 (Decision on the content of the updated document containing the charges), paras. 28 and 32; ICC (Trial Chamber V), Decision of 28.12.2012 – ICC-01/09- 02/11-584 (Decision on the content of the updated document containing the charges), para. 53. 285 ICC (Trial Chamber V), Decision of 28.12.2012 – ICC- 01/09-01/11-522 (Decision on the content of the updated document containing the charges), para. 19; ICC (Trial Chamber V), Decision of 28.12.2012 – ICC-01/09-02/11-584 (Decision on the content of the updated document containing the charges), para. 23. 286 For example, rather than subjecting the draft “post-confirmation DCC”, which must “indicate the material facts and circumstances underlying the charges as confirmed”, to the parties’ scrutiny, the Trial Chamber could refer this matter back to the Pre-Trial Chamber which heard the case with the request to specify the factual basis upon which the Chamber relied when confirming the charges (art. 64 para. 4). In this regard, Judge Eboe Osuji’s statement (“There is no power in the Trial Chamber to order the Pre-Trial Chamber to clarify the content of the [confirmation decision] if it is to be taken as the primary document of reference for the charges.”) without more seems unconvincing; s. his concurring separate opinion annexed to ICC (Trial Chamber V), Decision of 28.12.2012 – ICC-01/09-01/11-522 (Decision on the content of the updated document containing the charges), pp. 30-31 (p. 5/6). The proposed approach has the advantage that the trial chamber need not speculate about the Pre-Trial Chamber’s approach to the facts as it does in this case when assuming incorrectly that the pre-trial chamber “may not have examined in detail, in its Confirmation Decision, each factual allegation contained in the DCC and it may have chosen to focus on only some selected allegations and evidence sufficient for the task before it” (emphasis added). for an “updated DCC”. Nevertheless, they raise the legitimate question as to the degree of precision with which pre-trial chambers’ confirmation decisions have been drafted in the past. 287 An interesting development in this context is the Prosecutor’s recent art. 61 para. 9 request to the Pre-Trial Chamber to “re-insert” certain factual allegations previously denied by the Pre-Trial Chamber’s Majority as lacking adequate support. The Prosecutor explained that since the confirmation hearing she had obtained new evidence supporting the factual allegations she seeks to add. The Single Judge, acting on behalf of Pre-Trial Chamber II, asked for observations on the Prosecutor’s request by the accused and the victims. In addition, the Single Judge, recalling that the investigaton “ideally” should have been complete by the time of the confirmation hearing, requested the Prosecutor to “clarif[y] the reasons for not conducting the investigation in due course in compliance with the Appeals Chamber’s jurisprudence”. 288 In the course of both trial preparations, the Chamber issued a series of case management decisions. Of particular interest to the reader may be the Chamber’s decision permitting pre-testimony “witness preparation” by the calling party. 289 It is recalled that all chambers at the Court have prohib- 287 In two instances, Trial Chambers have appealed to the Pre-Trial Judges to provide Trial Chambers with a specific factual statement, s. ICC (Trial Chamber II), Decision of 21.10.2009 – ICC-01/04-01/07-1547-tENG (Decision on the Filing of a Summary of the Charges by the Prosecutor), para. 31; ICC (Trial Chamber III), Decision of 20.7.2010 – ICC- 01/05-01/08-836 (Decision on the defence application for corrections to the Document Containing the Charges and for the prosecution to file a Second Amended Document Containing the Charges). S.a. separate opinion of Judge van den Wyngaert, annexed to ICC (Trial Chamber V), Decision of 28.12.2012 – ICC-01/09-01/11-522 (Decision on the content of the updated document containing the charges), p. 37 para. 2 (“This is not to say that I believe this to be an ideal situation. It would be far better if the Pre-Trial Chamber had itself formulated the charges exhaustively or made clear which parts of the Prosecutor’s Document Containing the Charges it confirmed and which ones it rejected”). She made the same statement in Case 2. 288 ICC (Pre-Trial Chamber II), Decision of 29.1.2013 –ICC- 01/09-02/11-614 (Decision Requesting Observations on the “Prosecution’s Request to Amend the Final Updated Document Containing the Charges Pursuant to Article 61(9) of the Statute”), para. 9. S a. section I. 4. b above. 289 ICC (Trial Chamber V), Decision of 2.1.2013 – ICC- 01/09-01/11-524 (Decision on witness preparation); ICC (Trial Chamber V), Decision of 2.1.2013 – ICC-01/09-02/11- 588 (Decision on witness preparation). Up to this point, only Judge Ozaki, now Presiding Judge of Trial Chamber V, had accepted witness proofing to be compatible with the Statute, s. ICC (Trial Chamber III), Opinion of 24.11.2010 – ICC- 01/05-01/08-1039 (Partly Dissenting Opinion of Judge Kuniko Ozaki on the Decision on the Unified Protocol on the practices used to prepare and familiarise witnesses for giving testimony at trial). Leave to appeal the “witness preparation _____________________________________________________________________________________ Zeitschrift für Internationale Strafrechtsdogmatik – www.zis-online.com 151
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